The Ex-Files: Jeremy Sutton - My child doesn't want to be vaccinated

The vaccination of a child is a joint guardianship decision by both parents. Photo / 123RF

Opinion

OPINION:

Q: My son is aged 13 and has not had the Covid-19 vaccine. The mother and I have been through a very acrimonious separation. The mother is against the Covid-19 vaccine. I would like my son to be vaccinated. Unfortunately, I believe my son has been swayed by his mother into refusing the vaccine.

What is the process for resolving this dispute? We have already had a family meeting without success. My son has not been able to participate in certain extracurricular activities because he is unvaccinated. We also have a number of immune-compromised individuals in our family, including my elderly parents. My son has not been able to visit them in their rest home.

I want my son to be able to live his life fully, but my ex-wife has been a real stumbling block. Can I vaccinate my son without my ex-wife's consent?

A: This is a difficult situation. The vaccination of a child is a joint guardianship decision by both parents. Despite your view, you cannot vaccinate your child without your ex-wife's consent.

Mediation

Mediation is unlikely to resolve any dispute about vaccination. This is because people often hold strong views on this topic, and they are unlikely to change.

Court

Either party may file proceedings in the Family Court. The Principal Family Court Judge has directed these applications would normally be filed "on notice" regarding such a dispute.

If your ex-wife was concerned about you taking your son to be vaccinated, she could make an urgent application to the Family Court, asking that your son not be vaccinated, pending any decision of the court. I have known of some instances where this has taken place.

An application that is filed in the Family Court typically takes around nine to 12 months to resolve, but the court might decide to treat the matter with urgency given the nature of the dispute.

Child's views

As children get older their views will be given more weight. In this case, your 13-year old's views will be given significant weight. However, in doing so, the court will consider whether the views are their true views and whether they understand the consequences of their decision.

Recent Family Court case concerning Covid-19 vaccine

There was a recent Family Court case concerning a 12-year-old child who was strongly opposed to the vaccine. The mother wanted the child to be vaccinated but the father did not. The child also explained to the judge his reasons for not wanting the vaccine which included:

1. His father told him the vaccine companies were not liable for "stuff" if anything went wrong.

2. His father told him no one knows what was in the vaccine.

3. His stepmother told him Japan and Israel had concerns about the vaccine not working as quickly as it used to.

4. His stepmother told him the vaccine had been tested on aborted foetus cells.

5. His father told him the vaccine is "foreign stuff" and the Bible says not to have "foreign stuff" in one's body.

The judge came to the conclusion that the child had formed his own view of the vaccine as he had been provided a list of pros and cons by his lawyer. The child was also able to articulate to the Judge the clear consequences of not being vaccinated, including not being able to go on holiday in summer with his mother and not being able to participate in certain extracurricular activities in which he had been previously involved.

The child also told the judge that if he was ordered to have the vaccine, he would tell the clinic that he did not consent to the vaccination.

Important legislation and considerations

The judge considered the following in his decision:

1. Section 11 of the Bill of Rights Act 1990, which states that everyone has the right to refuse to undergo any medical treatment. The judge commented that the vaccine is not mandatory in New Zealand, and accordingly, the child, his father and stepfather are entitled to decline the vaccine. However, this choice restricts their movements, freedoms and activities and simply reflects that there are consequences for the exercise of rights.

2. The Ministry of Health "Covid-19 Vaccine Informed Consent for Young People aged 12 to 15 years" states that children aged 12 and above have the right to give their own consent, but it is recommended that they discuss with parents, whānau and trusted support people.

3. The child should be free to be exposed to a plurality of views so he can make his own decision about which values and beliefs he chooses to live by.

Summary

Where you and your ex-wife disagree on vaccination issues, court is the natural way to resolve that issue. However, this recent Family Court decision shows that if your child is refusing the vaccine and is old enough and mature enough to hold an informed view, it is unlikely the court will order the child to be vaccinated.

This is a new and developing area of the law. Children aged 12 to 15 have been allowed the vaccine since September 2021. The vaccine has been available to children aged 5 to 11 only from January 17 this year. This issue is yet to be tested in the High Court to my knowledge.

- Jeremy Sutton is a senior family lawyer specialising in divorce cases where there are significant assets, including family trust and complex business structures.